Hello, and thank you for choosing Mediafly.
Please read these terms of service (these “Terms“) carefully as they form a contract between you and the Mediafly entity listed in Section 15 of these Terms (“Mediafly“, “we“, “us“, or “our“) that governs your access and use of: (i) the Mediafly Airship content management and content processing system; (ii) mobile, tablet, TV and personal computer-based software provided or made available by Mediafly (the “Software“); (iii) the Mediafly websites; and, (iv) any written or electronic use or features guides or other documentation provided or made available by Mediafly (the “User Guides“) (collectively the “Service(s)“).
By registering or using any of the Services you agree to be bound by these Terms. If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising to Mediafly that you have the authority to bind that organization to these Terms (in which event, “you” and “your” will refer to that organization) unless that organization has a separate paid contract in effect with us, in which event the terms of that contract will govern your use of the Service. If you do not agree to be bound by these terms, you must not use the Services.
For customers with an existing Master Services Agreement, that agreement's terms and conditions supercedes the terms and conditions herein where terms may overlap. Should you have any questions concerning these Terms, please contact support@mediafly.com.
1. CHANGES TO THESE TERMS
We reserve the right to revise these Terms from time to time. If we decide to change these terms, we will post those changes on this page. This policy was last modified on August 28, 2013. If you don’t agree to any revisions to the Terms, we are not obligated to keep providing the Service, and you must cancel and stop using the Service.
2. ACCESS TO THE SERVICE
You may use the Service, on a non-exclusive basis, solely in strict compliance with these Terms and all applicable laws.
3. YOUR ACCOUNT
To obtain access to certain Services, you may be required to obtain an account with Mediafly (become a “Registered User“), by completing a registration form and designating a user ID and password. When registering with Mediafly you must: (a) provide true, accurate, current and complete information about yourself as requested by the Service’s registration form (such information being the “Registration Data“) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Mediafly may withdraw such approval at any time in its sole discretion, with or without cause.
Only you may use your Mediafly account. You must keep your account and passwords confidential and not authorize any third party to access or use the Service on your behalf, unless we provide an approved mechanism for such use. You must contact us right away if you suspect misuse of your account or any security breach in the Service. You are responsible for all activities that take place with your account. Mediafly will not be liable for any loss or damage arising from any unauthorized use of your accounts.
If a third party such as an employer gave you your account, that party has rights to your account and may: manage your account, reset your password, or suspend or cancel your account; view your account’s usage and profile data, including how and when your account is used; and read or store Content in your account. If you are an individual Registered User of the Service, and the domain of the primary email address associated with your account is owned by an organization and was assigned to you as an employee, contractor or member of such organization, and that organization wishes to establishes a commercial relationship with us and add your account to such relationship, then, if you do not change the email address associated with your account, your account may become subject to the commercial relationship between Mediafly and such organization and controlled by such organization.
4. CONTENT
Except for material that we license to you, we don’t claim ownership of any Content that is transmitted, stored, or processed in your account(s). We also don’t control, verify, or endorse the Content that you and others make available on the Service.
If you are a user of Mediafly's products through a third party such as an employer that gave you your account, and that third party requested the use of Technicolor Content Armor watermarking technology, your personal data (notably, email address, IP address, and content access history) is collected and managed by or on behalf of Mediafly. That personal data may be used to verify any piracy activities relating to the content you have accessed.
We provide functions that allow you to control who may access your Content. If you enable the features that allow you to share the Content with others, anyone you’ve shared content with (including the general public, in certain circumstances) may have access to your Content.
You represent and warrant that: (a) you have all the rights in the Content necessary for you to use the Service and to grant the rights in this Section; and, (b) the storage, use or transmission of the Content doesn’t violate any law or these Terms.
You will: (a) be solely responsible for the nature, quality and accuracy of the Content; (b) ensure that the Content (including the storage or transmission thereof) complies with these Terms and any and all applicable laws, and regulations; (c) promptly handle and resolve any notices and claims relating to the Content, including any notices sent to you by any person claiming that any Content violates any person’s rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices; and (d) maintain appropriate security, protection and backup copies of the Content, which may include, your use of additional encryption technology to protect the Content from unauthorized access.
Mediafly will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any Content.
You must immediately notify Mediafly in writing of any unauthorized use of any (a) Content (b) any Account or (c) the Service that comes to your attention. In the event of any such unauthorized use by any third party that obtained access through you, you will take all steps necessary to terminate such unauthorized use. You will provide Mediafly with such cooperation and assistance related to any such unauthorized use as Mediafly may reasonably request.
5. CONTENT STORED IN THE UNITED STATES
The Service is provided from the United States. By using and accessing the Service, you understand and consent to the storage and processing of the Content and any other personal information in the United States.
6. SUSPENSION AND TERMINATION OF CUSTOMER’S USE OF THE SERVICE
We reserve the right to temporarily suspend or terminate your access to the Service at any time in our sole discretion, with or without cause, and with or without notice, without incurring liability of any kind. For example, we may suspend or terminate your access to or use of the Service for: (a) the actual or suspected violation of these Terms; (b) the use of the Services in a manner that may cause Mediafly to have legal liability or disrupt others’ use of the Services; (c) the suspicion or detection of any malicious code, virus or other harmful code by you or in your account; (d) scheduled downtime and recurring downtime; (e) use of excessive storage capacity or bandwidth; or (f) unplanned technical problems and outages.
If Mediafly has elected to terminate your access to the Service, we will use commercially reasonable efforts to notify you through the Service. You acknowledge that if your access to the Service is suspended or terminated, you may no longer have access to the Content that is stored with the Service.
Upon termination by Mediafly, for reasons other than cause, or at your direction, you may request access to your Content, which we will make available for an additional fee. You must make such request with thirty (30) days following termination. Otherwise, any Content you have stored with the Service may not be retrievable, and we will have no obligation to maintain any data stored in your account.
7. ACCEPTABLE USE
You must not use the Service to harm others or the Service. You must not: damage, disable, overburden, or impair the Service (or any network connected to the Service); resell or redistribute the Service or any part of it; use any unauthorized means to modify, reroute, or gain access to the Service or attempt to carry out these activities; or use any automated process or Service (such as a bot, a spider, or periodic caching of information stored by Mediafly) to access or use the Service. In addition, you promise that you will not and will not encourage or assist any third party to:
(a) modify, alter, tamper with, repair or otherwise create derivative works of any Software;
(b) reverse engineer, disassemble or decompile the software used to provide or access the Service, including the Software, or attempt to discover or recreate the source code used to provide or access the Service, except and only to the extent that the applicable law expressly permits doing so;
(c) use the Service in any manner or for any purpose other than as expressly permitted by these Terms, the Privacy Policy, any User Guides or any other policy, instruction or terms applicable to the Service that are available on the Service (“Policies“);
(d) sell, lend, rent, resell, lease, sublicense or otherwise transfer any of the rights granted to you with respect to the Services to any third party;
(e) remove, obscure or alter any proprietary rights notice pertaining to the Service;
(f) access or use the Service in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas;
(g) use the Service to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) store or transmit inappropriate Content, such as Content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) that violates the intellectual property rights or rights to the publicity or privacy of others; (iv) store or transmit any Content that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (v) abuse, harass, stalk or otherwise violate the legal rights of a third party;
(h) access or attempt to access Mediafly’s other accounts, computer systems or networks not covered by these Terms, through password mining or any other means;
(i) cause, in Mediafly's sole discretion, inordinate burden on the Service or Mediafly’s system resources or capacity
8. UPDATES TO THE SERVICE
Mediafly reserves the right, in its sole discretion, to make necessary unscheduled deployments of changes, updates or enhancements to the Service at any time. We may add or remove functionalities or features, and we may suspend or stop a Service altogether.
9. SOFTWARE
If you receive Software from us, its use is governed in one of two ways: If you’re presented with license terms that you must accept in order to use the Software, those terms apply; if no license is presented to you, these Terms apply. We reserve all other rights to the Software.
We may automatically check your version of the Software. We may also automatically download to your computer or device new versions of the Software.
Any Software is licensed, not sold. Unless we notify you otherwise, the Software license ends when your Service ends. You must then promptly uninstall the Software, or we may disable it. You must not work around any technical limitations in the Software.
The Software is subject to applicable U.S. export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Software. These laws include restrictions on destinations, end users, and end use. Without limitation, you may not transfer the Software or Service without U.S. government permission to anyone on U.S. government exclusion lists (see the Commerce Department’s compliance list at http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm). You represent and warrant that you’re not on any of those lists or under the control of or an agent for anyone on those lists or the entities listed above.
10. MEDIAFLY PROPRIETARY RIGHTS
Mediafly owns and reserves all right, title and interest in and to the Service and all hardware, software and other items used to provide the Service, other than the rights explicitly granted to you to use the Service in accordance with this Terms. No title to or ownership of any proprietary rights related to the Service is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by Mediafly. In the event that you provide comments, suggestions and recommendations to Mediafly with respect to the Service (“Feedback“), You hereby grant to Mediafly a world-wide, royalty free, irrevocable, perpetual license to use and otherwise incorporate any Feedback in connection with the Service.
11. PRIVACY
In order to operate and provide the Service, we collect certain information about you. We use and protect your personal information as described in the privacy policy located at https://www.mediafly.com/privacypolicy (“Privacy Policy“).
12. NO WARRANTY
MEDIAFLY PROVIDES THE SERVICE “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MEDIAFLY MAKES NO (AND SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH AN EVENT SUCH EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
13. INDEMNIFICATION
To the extent permitted by law, you will defend, indemnify, and hold Mediafly harmless from and against any cost, loss, damage, or other liability arising from any third party demand or claim that any Content provided by you, or your use of the Service, in breach of these Terms: (a) infringes a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret; or, (b) violates applicable law or these Terms. Mediafly will reasonably notify you of any such claim or demand that is subject to your indemnification obligation.
14. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL MEDIAFLY, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR (A): ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF MEDIAFLY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF MEDIAFLY AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, RELATING TO THE SERVICES WILL BE LIMITED TO THE GREATER OF AN AMOUNT EQUAL THREE MONTHS OF YOUR SERVICE FEE FOR THE SERVICE OR FIVE DOLLARS ($5.00). THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY LAW.
15. CONTRACTING PARTY; GOVERNING LAW; LOCATION FOR RESOLVING DISPUTES
You are contracting with Mediafly, Inc. with an address at 444 N. Michigan Avenue, Suite 650, Chicago, IL 60611 USA. The laws of the State of Illinois, U.S.A. govern the interpretation of these Terms and apply to claims for breach of these Terms, regardless of conflict of laws principles. You and we irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts for Cook County, Illinois, USA, for all disputes arising out of or relating to these Terms. Mediafly may assign this contract to another entity at any time.
16. NOTICES
We may send you, in electronic form, information about the Service, additional information, and information the law requires us to provide. We may provide required information to you by email at the address you specified when you signed up for the Service or by access to a website that we identify. Notices emailed to you will be deemed given and received when the email is sent. If you don’t consent to receive notices electronically, you must stop using the Service. You may provide legal noticed to us via email to support@mediafly.com, with a duplicate copy sent via registered mail, return receipt requested, to the following address: Mediafly, Attn: John Evarts, 444 N. Michigan Avenue, Suite 650, Chicago, Illinois 60611. Any such notice, in either case, must specifically reference that it is a notice given under these Terms.
17. PAYMENTS AND REFUNDS
The fees applicable for the Service (“Fees“) are available on the Site. The price stated for the Service excludes all taxes and charges, unless stated otherwise. You’re responsible for any taxes and for all other charges (for example, data charges and currency exchange settlements). You will pay the Fees in the currency Mediafly quoted for your account. Mediafly reserves the right to change the quoted currency at any time.
In addition to any Fees, you may still incur charges incidental to using the Service, for example, charges for Internet access, data roaming, and other data transmission charges.
You authorize us to charge you for the Service using your payment method and for any paid feature of the Service that you choose to sign up for or use while these Terms are in force. We may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for subscription Services. Also, we may charge you up to the amount you’ve approved, and we’ll notify you in advance of the difference for recurring subscription Services. We may bill you simultaneously for more than one of your prior billing periods. Once we have informed you that the Service will be provided indefinitely or automatically renewed, we may automatically renew your Service and charge you for any renewal term.
You must keep all information in your billing account current. You may change your payment method at any time by emailing support@mediafly.com. If you tell us to stop using your payment method and we no longer receive payment from you for the paid Service, we may cancel that Service.
We’ll notify you at least 30 days in advance, either through the Service or to the email address you have most recently provided to us, if we change the price of the Service. If there’s a specific length and price for your Service offer, that price will remain in force for that time. After the offer period ends, your use of the Service will be charged at the new price. If you don’t agree to these changes, you must cancel and stop using the Service by sending an email to support@mediafly.com no later than fourteen (14) days prior to the conclusion of your current payment term. If you cancel, your Service ends at the end of the period in which you canceled.
Payments for all Personal and Team accounts are due the date the invoice is posted on your account.
Except as specifically set forth in this section, all Services are prepaid for the period selected (monthly, yearly or otherwise) and are non-refundable. This includes accounts that are renewed.
Except as prohibited by law, we may assess a late charge if you do not pay on time. You must pay these late charges when we bill you for them. The late charge will be the lesser of 1 percent of the unpaid amount each month or the maximum rate permitted by law. We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts, including reasonable attorneys’ fees and other legal fees and costs. We may suspend or cancel your Service if you fail to pay in full on time.
18. MISCELLANEOUS
18.1. Severability; Entire Agreement
These Terms apply to the maximum extent permitted by relevant law. If a court holds that we cannot enforce a part of these Terms as written, you and we will replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of this Terms will remain in effect. This is the entire contract between you and us regarding the Service. It supersedes any prior contract or oral or written statements regarding your use of the Service.
18.2. Assignment and transfer
We may assign, transfer, or otherwise dispose our rights and obligations under this contract, in whole or in part, at any time without notice. You may not assign this contract or transfer any rights to use the Service.
18.3. Independent Contractors; No third-party beneficiaries
Mediafly and you are not legal partners or agents; instead, our relationship is that of independent contractors. This contract is solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors.
18.4. Claims
Claims must be filed within one year. You must bring any claim related to these Terms or the Service within one year of the date you could first bring the claim, unless your local law requires a longer time to file claims. If it isn’t filed in time, the claim is permanently barred.
18.5. Waiver
The failure of either party to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.
18.6. Government Use
If you are a U.S. government entity, you acknowledge that any Software and User Guides that are provided are “Commercial Items” as defined at 48 C.F.R. 2.101, and are being provided as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.